CLICK THRU’ LICENCE AGREEMENT

IMPORTANT NOTICE: PLEASE READ CAREFULLY BEFORE PROCEEDING:

NOTICE TO USER: PLEASE READ THE TERMS SET OUT BELOW (THE “AGREEMENT”) CAREFULLY. BY CLICKING “I ACCEPT” YOU ACCEPT, FOR AND ON BEHALF OF THE ORGANISATION IN RESPECT OF WHICH YOU ARE AUTHORISED TO ENTER INTO THIS AGREEMENT (“LICENSEE”) THE TERMS OF THIS AGREEMENT IN RESPECT OF THE SOFTWARE INCLUDING WITHOUT LIMITATION, ALL PAST AND PRESENT VERSIONS THEREOF.  YOU WARRANT THAT YOU ARE AUTHORISED TO ENTER INTO LEGALLY BINDING CONTRACTS ON BEHALF OF THE LICENSEE AND THAT THE LICENSEE AGREES TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT.  YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE AS IF IT WERE A WRITTEN, NEGOTIATED AGREEMENT SIGNED BY YOU ON BEHALF OF THE LICENSEE. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT OR IF YOU ARE NOT AUTHORISED TO ENTER INTO LEGALLY BINDING CONTRACTS ON BEHALF OF THE ORGANISATION WHICH SHALL BE USING THE SOFTWARE DO NOT CLICK “I ACCEPT” AND DO NOT ATTEMPT TO USE THE SOFTWARE.

IN THE EVENT THAT ON THE DATE THAT YOU ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT, THERE IS A PRIOR WRITTEN LICENCE AGREEMENT (THE “EXISTING AGREEMENT”) BETWEEN THE LICENSEE AND ALLOCATE SOFTWARE PLC (THE “LICENSOR”) IN FORCE IN RELATION TO THE SOFTWARE, THE EXISTING AGREEMENT SHALL NOT BE SUPERSEDED BY THIS AGREEMENT AND THE TERMS AND CONDITIONS OF THE EXISTING AGREEMENT SHALL TAKE PRECEDENCE OVER THE TERMS AND CONDITIONS OF THIS AGREEMENT.

1.	Definitions

In this Agreement the following expressions shall, unless the context otherwise requires, have the following respective meanings:-
	
“Effective Date” means: 

(a)	in the event that the Licensee has previously Used the Software, the date on which the Licensee first used the Software; or

(b)	in the event that You have not previously Used the Software, the date on which You accept the terms and condition of this Agreement.
 
“Documentation” means the electronic user manual supplied on the media on which the Software is supplied;

“Licence Fee” means the non-refundable fee(s) paid by the Licensee in respect of the licence of the Software as notified to the Licensee by the Licensor;

“Licence Parameters” shall mean the parameters in respect of which the Licensee has made one or more payments to Licensor and within which the Licensee is licensed to Use the Software, which may include: (i) the number of servers, users or seats; (ii) the types of users; or (iii) the volume of database records processed by the Software; 

“Minimum Requirement” means the minimum technical specification required to enable the Software to function in accordance with the Documentation and/or at all, as set out in the Documentation or as mutually agreed by the parties;

“Software” means the object code version of the computer program(s) licensed to the Licensee pursuant to this Agreement as notified to the Licensee by the Licensor, and all previous versions, modifications, updates and enhancements thereto which are or have been provided to the Licensee

“Use” or “Using” means to access, install, load, download, utilise, operate, store or display the Software to process the Licensee's information and serve the Licensee's internal business purposes only in accordance with the licence restrictions set forth in this Agreement.

2.	Grant of Rights; Restrictions

2.1	Subject to all the terms and conditions of this Agreement and in consideration for the payment of the Licence Fee, the Licensor hereby grants the Licensee a non-exclusive, non-transferable, non-assignable and limited right to Use each version of the Software in accordance with the Licence Parameters.  For the avoidance of doubt, the Licensee shall be solely responsible for the installation of the Software onto its operating system.

2.2	The Licensee agrees that it will not, directly or indirectly, or through any intermediate or ultimate direct or indirect parent, affiliate, holding company, subsidiary, subsidiary of any such holding company, agent, or other third party: 

2.2.1	modify, translate, create derivative copies of or copy the Software (other than one backup copy which reproduces all proprietary notices), in whole or in part;

2.2.2	sell, lease, license, sub-license, encumber or otherwise deal with the Software or any portion of the Software or the Documentation or any portion of the Documentation;

2.2.3	decompile, disassemble, reverse engineer or attempt in any manner to derive any source code version of the Software or any portion of the Software, unless and only to the extent otherwise required and permitted under applicable law;

2.2.4	use the Software to provide to any unrelated third parties, computing services or access thereto, including but not limited to commercial software or computer timesharing, rental or sharing arrangements, or data processing services offered on a service bureau basis;

2.2.5	provide, disclose, divulge or make available to, or permit use of the Software by persons other than the Licensee’s employees without the Licensor’s prior written consent; 

2.2.6	remove or alter any copyright or other proprietary notice on any of the Software or the Documentation; 

2.2.7	exceed the License Parameters;  or 

2.2.8	use the Software in any manner not expressly authorised by this Agreement.

2.3	The Licensee shall ensure that it has, and shall maintain, an up-to-date version of appropriately robust virus-checking software installed on its servers and shall ensure that all Software provided by the Licensor hereunder is scanned for viruses prior to installation of any such Software on the Licensee’s servers.

2.4	The Licensee agrees, subject to reasonable prior notice, to give the Licensor such access and assistance as may be necessary for the Licensor to  audit the Licensee’s operations, wherever situated, as and to the extent that the Licensor deems necessary to confirm the Licensee’s compliance with this Agreement.

2.5	For the avoidance of doubt and where applicable, the Licensee accepts and agrees that the terms and conditions set out herein shall apply to all previous versions of the Software which may have been provided to the Licensee.

3.	Proprietary Rights

This Agreement conveys a limited licence to use the Software and shall not be construed to convey title to or ownership of the Software to the Licensee.  The Software may contain copyrighted material, trade secrets and other proprietary material. The Licensee acknowledges and agrees that the Licensor has sole and exclusive ownership of all right, title and interest in and to the Software and any related trademark, trade secret, copyright or other intellectual property right with respect to the Software are and shall remain the exclusive property of the Licensor.  All rights in and to the Software not expressly granted to the Licensee are reserved by the Licensor.

4.	Licence Fee 

4.1	In consideration for the licence of the Software granted to the Licensee herein, the Licensee shall pay the Licensor the Licence Fee. Such Licence Fee shall be due and payable on the Effective Date.

4.2	The Licence Fee shall be as notified to the Licensee by the Licensor and is exclusive of any applicable sales, use or service tax or any other applicable tax of any nature whatsoever, including any VAT.  

4.3	If any applicable law requires the Licensee to withhold amounts from any payments to Licensor hereunder, (i) the Licensee shall effect such withholding, remit such amounts to the appropriate taxing authorities and promptly furnish Licensor  with tax receipts evidencing the payments of such amounts, and (ii) the sum payable by the Licensee upon which the deduction or withholding is based shall be increased to the extent necessary to ensure that, after such deduction or withholding, Licensor  receives and retains, free from liability for such deduction or withholding, a net amount equal to the amount Licensor would have received and retained in the absence of such required deduction or withholding.  

5.	Termination

5.1	This Agreement shall commence on the Effective Date and continue indefinitely unless and until this Agreement is terminated in accordance with clause 5.2.

5.2	The Licensor may, by written notice to the Licensee, terminate this Agreement forthwith if any of the following events occur, provided that no such termination will entitle the Licensee to a refund of any portion of any monies which have been paid to the Licensor:

5.2.1	the Licensee is in breach of this Agreement, which breach, if capable of being remedied, has not been remedied within thirty (30) days after the Licensor has given the Licensee written notice of such breach; or 

5.2.2	the Licensee terminates its business activities or becomes insolvent, admits in writing its inability to pay its debts as they mature, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority.

5.3	Any termination of this Agreement shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any rights or liabilities of either party nor the coming into or continuance in force of any provision hereafter which is expressly or by implication intended to come into or continue in force on or after such termination.

5.4	Upon any termination of this Agreement: (i) all rights and licences granted to the Licensee under this Agreement shall terminate forthwith without notice; (ii) the Licensee shall cease all use of the Software; and (iii) all copies of the Software in the Licensee’s possession or under its control must be returned to Licensor at the Licensee’s expense; and (iv) the Licensee shall certify in writing to Licensor its compliance with the foregoing.  

5.5	The following clauses shall survive termination of this Agreement for any reason:  1, 3, 5.3, 5.4, 5.5, 7 and 8.

6.	Limited  Warranty

6.1	Subject to Clause 6.2, the Licensor warrants to the Licensee that the Software will conform in all material respects with the specifications set out in the Documentation for a period of ninety (90) days from the Effective Date. If the Software does not so perform, the Licensor shall use commercially reasonable efforts to correct the non-conforming portion of the Software. If such correction is not commercially practicable, the Licensor shall be entitled to terminate this Agreement with respect to the non-conforming Software and refund the monies paid by the Licensee attributable pro rata to such non-conforming Software. 

6.2	The foregoing limited warranty in clause 6.1 is made to and for the benefit of Licensee only and will be enforceable against the Licensor only if:

6.2.1	the Licensee has paid the Licence Fee and otherwise complied with the terms of this Agreement at all times;

6.2.2	the Software has been installed and used at all times in accordance with the instructions for Use set forth herein or in the Documentation; 

6.2.3	the Licensee’s computer systems meet the Minimum Requirements;

6.2.4	the Licensee has not made or caused to be made modifications, alterations or additions to the Software, or to linked or associated systems to which the Software sends data, or from which the Software receives data, via interfaces, that cause it to deviate from the Documentation; and

6.2.5	any non-conformance of the Software is not due to Licensee or third party installation or integration services. 

6.3	The Licensor shall have no obligation to provide ongoing support or maintenance services to Licensee unless the parties enter into a separate support and maintenance agreement.

6.4	THE WARRANTIES SET FORTH IN THIS CLAUSE 6 ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USE OF TRADE, AND WHETHER WRITTEN OR ORAL, ALL OF WHICH ARE HEREBY EXCLUDED AND DISCLAIMED TO THE FULLEST EXTENT PERMISSIBLE BY LAW. WITHOUT PREJUDICE TO THE GENERALITY OF THE FOREGOING, THE LICENSOR (INCLUDING ITS RESPECTIVE LICENSORS, AGENTS AND SUB-CONTRACTORS, IF ANY) DOES NOT WARRANT THAT THE SOFTWARE IS ERROR-FREE OR THAT OPERATION OF THE SOFTWARE WILL BE SECURE OR UNINTERRUPTED AND HEREBY DISCLAIMS ANY AND ALL LIABILITY IN RESPECT THEREOF.

6.5	The Licensee hereby represents that it shall (i) comply with all applicable local and foreign laws and regulations which may govern the use of the Software, and (ii) use the Software only for lawful purposes and in accordance with the terms of this Agreement.

7.	Limitation of Liability

7.1	SUBJECT TO CLAUSES 7.2, 7.3 AND 7.4, THE LICENSOR’S MAXIMUM LIABILITY IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), MISREPRESENTATION, RESTITUTION OR OTHERWISE ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED IN THE AGGREGATE TO THE MONIES PAID BY LICENSEE TO THE LICENSOR UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. 

7.2	IN NO EVENT SHALL THE LICENSOR (INCLUDING ITS RESPECTIVE LICENSORS, AGENTS AND SUB-CONTRACTORS, IF ANY) BE LIABLE FOR:

7.2.1	ANY LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, LOSS OF USE, LOSS OF CONTRACTS, LOSS OF GOODWILL, BUSINESS OR BUSINESS BENEFIT, LOSS OF MANAGEMENT TIME OR THE COST OF PROCUREMENT OF SUBSTITUTE SOFTWARE BY THE LICENSEE (WHETHER DIRECT OR INDIRECT); OR

7.2.2	ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OR LOSSES OF ANY NATURE WHATSOEVER,

EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSS, COST OR DAMAGES. 

7.3	IN NO CIRCUMSTANCES SHALL THE LICENSOR (INCLUDING ITS RESPECTIVE LICENSORS, AGENTS AND SUB-CONTRACTORS, IF ANY) BE LIABLE FOR ANY FAILURE OF THE SOFTWARE TO PERFORM IN ACCORDANCE WITH THE DOCUMENTATION. ADDITIONALLY, THE LICENSEE ACKNOWLEDGES THAT WHILST THE SOFTWARE MAY BE USED IN COMBINATION WITH THIRD PARTY SOFTWARE, THE LICENSOR (INCLUDING ITS RESPECTIVE LICENSORS, AGENTS AND SUB-CONTRACTORS, IF ANY) BEARS NO LIABILITY, HOWSOEVER ARISING, FOR ANY LOSS, DAMAGE OR COST THAT ARISES FROM A FAILURE OF THE SOFTWARE TO INTEGRATE OR INTEROPERATE WITH ANY LICENSEE OR THIRD PARTY SOFTWARE OR SYSTEMS INCLUDING LEGACY SYSTEMS UNLESS EXPRESSLY SET OUT TO THE CONTRARY HEREIN.

7.4	FOR THE AVOIDANCE OF DOUBT, NOTHING IN THIS AGREEMENT SHALL BE DEEMED TO EXCLUDE, RESTRICT OR LIMIT THE LIABILITY OF A PARTY (OR ITS RESPECTIVE LICENSORS, AGENTS OR SUB-CONTRACTORS) FOR DEATH OR PERSONAL INJURY RESULTING FROM THAT PARTY’S NEGLIGENCE OR ANY LIABILITY FOR FRAUDULENT MISREPRESENTATION. 

7.5	Both parties accept that the limitations and exclusions set out in this Agreement are reasonable having regard to all the circumstances.

7.6	No employee, agent, representative or affiliate of the Licensor has authority to bind the Licensor to any oral representations or warranties concerning the Software. Any written representation or warranty not expressly contained in this Agreement is unenforceable except that this shall not exclude liability for fraudulent misrepresentation.

7.7	The Licensee shall indemnify Licensor against any claim for loss or damage of any kind suffered by a third party arising from the use by that third party of any application developed using the Software.

8.	General

8.1	This Agreement will be governed by and interpreted in accordance with the laws of England and Wales and the parties agree to submit to the exclusive jurisdiction of the English Courts.

8.2	 Any waiver of the provisions of this Agreement or of a party's rights or remedies under this Agreement must be in writing to be effective.  Failure, neglect or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time will not be construed or be deemed to be a waiver of such party's rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice such party's right to take subsequent action.

8.3	This Agreement contains the entire agreement between the parties concerning the subject matter of this Agreement and supersedes all previous communications, representations, understandings and agreements (except any Existing Agreement), whether oral or written, between the parties relating to the subject matter of this Agreement.

8.4	This Agreement may not be altered or modified in any way except by an instrument in writing executed by an authorised representative of each party.  

8.5	 No terms, provisions or conditions of any purchase order, acknowledgement or other business form that the Licensee may use in connection with the acquisition or licensing of the Software will have any effect on the rights, duties or obligations of the parties hereunder, or otherwise modify this Agreement, regardless of any failure of the Licensor to object to such terms, provisions or conditions.  

8.6	A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or enjoy the benefit of any terms of this Agreement.

8.7	If any part of any provision of this Agreement shall be invalid or unenforceable, then the remainder of such provision and all other provisions of this Agreement shall remain valid and enforceable.	

8.8	Neither this Agreement nor any rights under this Agreement may be assigned or otherwise transferred by the Licensee, in whole or in part, whether voluntarily or by operation of law, including by way of sale of assets, merger or consolidation, without the prior written consent of the Licensor.  Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and permitted assignees.

8.9	Any notice required or permitted under the terms of this Agreement or required by law must be in writing and must be: (a) delivered in person, or (b) sent by registered mail, return receipt requested, or (c) sent by overnight air courier, or (d) delivered by facsimile, in each case forwarded to the address provided to the sender by the recipient or, where no address has been provided, the recipient’s registered office. Either party may change its address for notice by written notice to the other party given in accordance herewith.  Notices will be considered to have been given: (i) at the time of actual delivery in person; or (ii) three (3) business days after mailing; or (iii) one (1) day after (i) delivery to an overnight air courier service; or (iv) the moment of transmission by facsimile provided that a successful transmission report was received, and further, that if the moment of transmission falls outside regular business hours notice shall be considered to have been given at the beginning of the next business day.